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\ No. 782 


ELECTION OF 

UNITED STATES SENATORS 

PAPER BY 

ALBERT A. DOUB, ESQ. 

READ AT THE FOURTEENTH ANNUAL 
MEETING OF THE MARYLAND STATE 
BAR ASSOCIATION :: :: :: 


HELD AT OLD POINT COMFORT. VA. 
JULY 7, 8. 9, 1909 



PRESENTED BY MR. GALLINGER 
January 24, 1911.—Ordered to be printed 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1911 





















7 


FEB 1 J91I 



THE ELECTION OF UNITED STATES SENATORS. 

By Albert A. Doub, Esq. 

TRead at the Fourteenth Annual Meeting of the Maryland State Bar Association, held at Old Point 
Comfort, Va., July 7, 8, 9, 1909.] 

There has grown up in recent years a new school of statesmen 
who are dissatisfied with the Constitution of the United States, and 
especially with the method of electing United States Senators. 
For a century this Constitution has been a wonder of the world, and 
has received the encomium of statesmen and publicists of Europe 
and America. Among others, De Tocqueville in France and Glad¬ 
stone in England have sounded its praise in language of enthusiasm 
that has been hardly surpassed by its admirers m America. It was 
the great English Commoner who described the American Constitu¬ 
tion as “the most wonderful work ever struck off at a given time by 
the brain and purpose of man.’ , That the members of the Conven¬ 
tion of 1787 sprang from a race that for more than a hundred years 
had been cradled in liberty, and that they, above all men who had 
lived before, had a genius for framing constitutions, has often been 
repeated. But it is upon the Senate that the new champions of the 
people have been pouring the vials of their wrath. They insist 
that this House is not what it once was, and that the constitutional 
provision, requiring the State legislatures to select its members, is 
wrong in principle and unsatisfactory in practice, and that this duty 
should be assigned directly to the people. 

Even the platform of a national party proposes this change as a 
reform that will open the gateway to other reforms. 

Until recently we had all been taught to regard the Senate as the 
most august, deliberative assembly in the world, and an eminent 
foreign statesman, now the British ambassador in Washington, and 
a profound student of American as well as English politics, not long ago 
called the Senate “the masterpiece of the Constitution,” and in 
comparing the two Houses Mr. Bryce further said: 

It may be doubted whether the Senate has excelled the House in attachment to 
the public good, but it has certainly shown greater capacity for managing the public 
business, and has won the respect, if not the affections of the people, by its sustained 
intellectual power. 

It may be of interest to refer briefly to the proceedings of the 
Great Convention, with special reference to its discussions relating 
to the election of Senators. The questions of the election of Sena¬ 
tors and of the number to be accorded each State were closely 
intertwined, and the solution of the one involved in the end the solu¬ 
tion of the other. 

The most persistent and stubborn contest was waged during the 
settlement of these two questions, and more than once during the 
discussion the difficulty of reaching a compromise was so far- 
reaching that a failure of the convention was imminent. Various 
proposals were made and rejected before the present plan was adopted. 


4 


ELECTION OF UNITED STATES SENATORS. 


A resolution providing that the members of the first branch 
should be elected by the people of the several States was opposed 
by Mr. Sherman, Mr. Gerry, and Mr. Butler, but was supported by 
Mr. Mason, Mr. Wilson, and Mr. Madison, and upon final vote it was 
carried through the support of the States of Massachusetts, New 
York, Pennsylvania, Virginia, North Carolina, and Georgia, although 
the States of New Jersey and South Carolina voted against it, and 
the States of Connecticut and Delaware were divided. So there 
was strong opposition even to the present plan of electing the House 
of Representatives by the people. 

Mr. Randolph first proposed that the members of the second 
branch should be elected by those of the First House from a proper 
number nominated by the individual legislatures. Mr. Charles 
Pinckney, in the beginning, proposed that the Senate should be 
chosen by the Lower House, and that the States be divided into three 
classes: New Hampshire, Massachusetts, Rhode Island, and Connect¬ 
icut were to form one class, .New York, New Jersey, Pennsylvania, 
and Delaware one class; and those from Maryland, Virginia, South 
Carolina, and Georgia a third class. 

A resolution of the committee that the second branch ought to be 
chosen by the first branch out of the persons nominated by the State 
legislatures provoked an earnest and protracted discussion. Mr. 
Wilson opposed both the nomination by the State legislatures and 
the election by the first branch, because the second branch of the 
National Legislature ought to be independent of both, and thought 
that both branches ought to be chosen by the people, but he sug¬ 
gested the division of the people into districts. It was Mr. Dickinson, 
of Delaware, who moved that the members of the second branch ought 
to be chosen by the individual legislatures. This motion was sec¬ 
onded by Mr. Sherman, who observed that the States would thus 
become interested in supporting the National Government, and that 
harmony between the two governments would be maintained. Mr. 
Read observed that if the small States would be allowed one Senator, 
the number would be too great, as that would bring about the elec¬ 
tion of 80 Senators, upon the basis of population, and suggested that 
the Senate be appointed by the Chief Executive Magistrate out of a 
proper number of persons to be nominated by the individual legisla¬ 
tures, but this proposal was not supported at all. It was Mr. Madison 
who then stated that if the motion of Mr. Dickinson should prevail, 
it would be necessary to depart from the principle of proportional rep¬ 
resentation or admit into the Senate a very large number of members, 
and he contended that a departure from the plan of proportional rep¬ 
resentation was evidently unsafe, and that it was inexpedient to have 
a very large number. He compared the proposed Senators to the 
tribunes of Rome and stated that as their number was augmented 
their power was diminished and contended that the more the repre¬ 
sentatives of the people were increased in number the more they 
would partake of the infirmities of their constituents, and the more 
liable they would be to divisions among themselves. 

So four modes of appointing the Senate were suggested: First, by 
the first branch of the National Legislature; second, by the National 
Executive; third, by the people: fourth, by the individual legisla¬ 
tures. Mr. Gerry stated that the first method would create depend¬ 
ency; that the second was a stride toward monarchy; that the third 


ELECTION OF UNITED STATES SENATORS. 


5 


would cause a conflict between the two great interests—the landed 
and commercial—and that the fourth, which he favored, would be 
most likely to provide some check in favor of the commercial interests 
against the landed. In the end Mr. Dickinson’s motion declaring for 
the appointment of the Senate by the State legislatures was unani¬ 
mously supported by the members of the convention. After the 
adoption of this resolution it became easy to reach a decision as to the 
number of Senators, and the larger and more populous States in the 
end surrendered their demand for proportional representation, and 
the present number was fixed upon. 

The chief difficulty seems to have been to devise a plan of indirect 
election of Senators, who would respond to the public will and judg¬ 
ment, but only when the will and judgment of the people had been 
deliberately formed. This is a difficulty that has presented itself to 
the countries of Europe from the earliest times. The people of 
England have wanted to reform the hereditary House of Lords for 
more than a generation, in some way by which to strengthen it, and 
make it more useful in framing beneficent legislation without pro¬ 
viding for the election of its members, as in the case of the House of 
Commons. In his American Commonwealth Mr. Bryce has said, 
after reviewing the plan by which the several countries of Europe 
give a distinct character to each house: “The American plan, which 
is older than any of those in use on the European Continent, is also 
better, because it is not only simple but natural, i. e., grounded on 
and consonant with the political conditions of America.” 

In 1788 Mr. Madison, in addressing the Virginia convention on 
the expediency of adopting the Constitution, said: 


The Members of the National House of Representatives are to be chosen by the 
people at large in proportion to the members in the respective districts; when we come 
to the Senate, its Members are elected by the States in their equal and political ca¬ 
pacity; but had the Government been completely consolidated, the Senate would 
have been chosen by the people in their individual capacity in the same manner 
as the Members of the House. Thus, it is of a complicated nature, and this complica¬ 
tion, I trust, will be found to exclude the evils of absolute consolidation, as well as of 
a mere confederacy. 


Mr. Hamilton, in the twenty-seventh chapter of the Federalist, 
says: 


Various reasons have been suggested in the course of these papers to induce a proba¬ 
bility that the General Government would be better administered than the particular 
governments, the principal of which reasons are that the extension of the spheres of 
election will present a greater option or latitude of choice to the people; that through 
the medium of the State legislatures, which are select bodies of men, and which are 
to appoint the Members of the National Senate, there is reason to expect that this 
branch will be generally composed with peculiar care and judgment; that these cir¬ 
cumstances promise greater knowledge and more extensive information in the national 
councils, and that they will be less apt to be tainted by the spirit of faction and 
more out of reach of those occasional ill humors or temporary prejudices and pro¬ 
pensities which in smaller societies frequently contaminate the public councils, 
begets injustice and oppression of a part of the community, and engender schemes 
which, though they gratify a momentary inclination or desire, terminate in general 
distress, dissatisfaction, and disgust. 

In the beginning it was only given to the people directly to select 
their Representatives in the lower House, but the selection of the 
Executive and judiciary, as well as of the Senate, was deferred to 
select bodies or officers. It was not long, however, until the duties 
of the electoral college were encroached upon and the electors 
became a mere machine to register the choice of the people, expressed 


6 ELECTION OF UNITED STATES SENATORS. 

through a mere party convention. Although this method of choosing 
Senators has provoked the commendation of foreign critics, and has 
been generally commended by students of government who realize 
the difficulty of selecting the legislative chamber by indirect election, 
it seems that the party caucus and the party political leaders, or 
many of them, have chosen this section of the Constitution for amend¬ 
ment. Notwithstanding the fundamental condition upon which the 
Constitution was adopted by the convention and the people, upon 
which the great States were willing to accord the smaller States 
equal representation and surrendered their claim to proportional 
representation, was the method fixed by the Constitution, by which 
a link between the States and Federal Government, the sovereign 
States and the sovereign nation, was provided. The framers of the 
Constitution believed, and rightly, too, that the Senators chosen 
would be representatives of the interests by which they were elected; 
that is, of the States as well as the people. It was believed then 
that the State legislatures would select bodies of men who would 
choose with peculiar care, and their choice would not be infected 
by the temporary prejudices and passions which control the popu¬ 
lace on election day. 

It is not an unjustified tribute to the personnel of the Senate to 
say that during the first century of its existence the judgment of 
the wise fathers of the Constitution was fully vindicated. If there 
has been any lack of confidence in the wisdom and character of the 
Senators during the present generation, it has been due to a lack of 
confidence in the State legislatures and to the demagogic spirit with 
which every public question seems now to be approached. It is 
hard to believe that there is less patriotism in this most enlightened 
day in the history of the Eepublic, and yet it is safe to say that the 
proportion of public men who fatten on public prejudice seems to 
have very materially increased. Hamilton, in his first paper in the 
Federalist, has well said: 

A dangerous ambition more often lurks behind the specious mask for the rights of the 
people than under the forbidding appearance of zeal for the firmness and efficiency 
of government * * * and that of those men who have overturned the liberties 
of republics the greatest number have begun their career by paying an obsequious 
court to the people—commencing demagogues and ending tyrants. 

It is only within recent years that many men have arisen to promi¬ 
nence and landed in conspicuous position merely by trading on 
popular prejudice and by exploiting doctrines more seductive and 
popular than wise and beneficent. 

I venture to submit that the legalizing of primaries, by which to 
select United States Senators, for whom the members of the legisla¬ 
tures are bound to vote, in spite of the obligations of their oath to 
support the Federal Constitution, is one of the gravest movements 
tending to the destruction of the vigor and usefulness of both the State 
legislatures and Federal Senate. 

The opponent of the direct popular election of Senators is charged 
by the statesmen who have seen this new light with unfriendliness 
to the people and want of confidence in them. This is a very super¬ 
ficial view and worthy only of the man who delights more in popular 
applause for himself than in the welfare of his country. The wise 
man knows himself and human nature as well, and yet with all his 
wisdomffie fears himself no less than the'populace under the influence 


ELECTION OF UNITED STATES SENATORS. 


7 


of passion, prejudice, and temporary self-interest, and would safe¬ 
guard himself and others from the danger of submitting all the 
officers of the Government to the hazards of popular elections. It was 
true in the days of Madison when he said—it is now and ever will be 
true: “Although every Athenian citizen might be a Socrates, every 
Athenian assembly would still be a mob.” It was not safe to trust 
to the inconsiderate action of the people such tremendous power in 
1787, and it is not safe now. 

It is because of the tendency of the popular assemblies to respond 
to gusts of passion and public clamor that it has been found necessary 
in all the States to provide constitutional limitations on their power. 
The old system may not cause the selection of the best men, and 
may not furnish the best results, and yet it is doubtful whether the 
public clamor against the Senate is not really a tribute to its usefulness, 
resisting popular but baneful measures, mistaken for panaceas. The 
members of the State legislatures realize their responsibilities to the 
people more than the average man, who is responsible only to him¬ 
self. Besides, there is wisdom in a selected number of men who confer 
and discuss men and measures. The object of all government being 
to secure liberty and justice to its citizens, it was long ago discovered 
from the experience of mankind that checks and balances, restraints 
and safeguards were indispensable, for excess of power in the executive 
leads to despotism, and the submission of all questions to the direct 
action of the people is sure to breed ill-considered legislation and 
inconsistency of laws, and gradually to end in socialism. 

Constitutions are framed in order to secure to the people rights and 
privileges and to establish certain margins or limits within which 
the legislative, executive, and judicial authorities must act, and thus 
to secure safely the balance of power between the three departments of 
Government, and, furthermore, securely to maintain self-government, 
and to avoid the tyranny of populous sections of States over those less 
populous. It has been the settled policy of all the States to create 
divisions or districts, and to elect the representatives of both houses 
of the legislature from these divisions, and not by voting en masse. 
It is true that down to 1842 congressional districts were unknown, 
and Congressmen were elected by people of the States voting all 
together, but the evils of that system were manifest, and districts 
were provided. Mass voting for the members of the State legislatures 
would be subversive of the principles that have prevailed for more 
than a century, and soon would destroy self-government and menace 
the liberty of the Republic, and yet that is the very suggestion of 
the men who want to improve in this way upon the wisdom of their 
ancestors, whose genius designed the fabric of the Constitution. The 
despotism of the majority is just as grievous as that of the single 
monarch, even if it be the majority of the people. To give the power 
of choosing Senators to the centers of population of the State, the 
great cities, which are constantly becoming both relatively and 
absolutely more populous, whose interests so often clash with those 
of other sections of the States, and thereby ignore the rights of the 
minority, is a new and radical departure from the Constitution, 
which may soon undermine its very existence. 

The duties of the Senate are executive and judicial, as well as legis¬ 
lative, and in the discharge of its duties there is demanded the 
highest standard of independence. To popularize a chamber, charged 


8 


ELECTION OF UNITED STATES SENATORS. 


with the responsibility of confirming or rejecting nominations for 
places on the Federal bench would tend to drag the unsullied ermine 
of the hitherto unstained judiciary of the United States from its lofty 
pedestal of independence, and make it subservient to the influences 
assisting in its appointment. To be able to bring the judge inde¬ 
pendent enough to defy the clamor of the demagogue, the press, or 
the special interests of every class in the vindication of the law, as 
recognized by authority and sound reason before a popular tribunal 
upon impeachment, on an indictment framed by a popular grand 
jury, in the form of the House of Representatives, would at an early 
day make a popular judiciary perhaps, but not a safe, wise, and inde¬ 
pendent one fit to be entrusted with great questions of constitutional 
rights and public and private wrongs. When the new school of 
statesmen, who can not see the wisdom of the old Constitution that 
has guided the Republic so safely and well for more than a century, 
shall have delegated to the people en masse the selection of Senators 
from the different States, the end is not yet. The hunger for power 
grows on what it feeds. To have absorbed the right to elect the 
Executive and the two Houses of Congress will not satisfy. The next 
attack will be on the judiciary, and already the mutterings of discon¬ 
tent that precede the coming demand, are heard. The same influ¬ 
ences which demand the direct election of Senators are now expressing 
dissatisfaction with the decisions of the Federal judges, and it will not 
be long until a Moses, in righteous indignation that the judges have 
stood fast to ancient landmarks and have refused to yield to a passing 
political passion, will rise perhaps out of the west, and demand that 
the people by some'sort of referendum shall pass upon the nomination 
or confirmation of judges. 

As judge of the qualification of its own members, the Senate will be 
required, in close elections, to investigate the methods and probable 
frauds that may occur among all States, in some of which, millions of 
votes will be cast and countless contested ballots will have to be 
examined. In the House of Representatives, there have been already 
about 400 contested cases, most of which have been decided on par¬ 
tisan considerations, just as in the British House of Commons, such 
cases were decided with so much bias and reference to partisan advan¬ 
tage that jurisdiction had to be transferred to the judges. When the 
Senate has this new duty to perform, and feeling shall run high in the 
various States over such contests, it is not unreasonable to anticipate 
that the confidence in its honor and integrity shall be lessened or 
entirely lost. 

It might be well to inquire whether there is any sound reason for 
this demand for a revolution of the Senate. Have the legislatures 
failed to select the best men obtainable—representative citizens of 
conspicuous merit in character, experience, and ability, who respond 
to the calm, deliberate will of the people? Are the people likely to 
choose a different and better class of men for the Upper House ? The 
Senators to-day, as they have always been, are the most conspicuous 
citizens of the several States. At least one-fourth of them have been 

E romoted from the House of Representatives; many of them have 
een governors of States, members of the State or Federal judiciary, 
those most honored by the States of the Commonwealth from which 
they are accredited, distinguished lawyers or most successful business 
men, or they have arisen to this eminence by reason of some peculiar 


ELECTION OF UNITED STATES SENATORS. 


9 


genius for politics or public affairs. If there be no great statesmen in 
the Senate, it is because America is now barren of statesmanship, for 
they are, in general, the best their States can furnish, and the fault is 
in the material which the States have produced; and not in the manner 
of their selection. 

In the Sixty-first Congress, 23 of the Senators have been governors 
of States, and of the remainder, 30 have been promoted from the 
House of Representatives. Among the others, at least a dozen of 
them before they came to the Senate, were the leaders of the bar in 
their respective States. One had twice declined the nomination 
of governor by his party, and another had been United States district 
attorney, Secretary of War, Secretary of State, and leader of the 
American bar. Many had had long experience as members of the 
legislatures of their respective States, and some in the capacity of 
presiding officers. 

The need of the hour seems to be improvement in the personnel 
of the legislatures. This can not be done by robbing them of the only 
power they exercise in the National Government, for the capacity of 
the membership of the legislature is sure to diminish with the lessen¬ 
ing of its responsibilities. The people who select the State legislatures 
will be the same people, under the new regime, who will select the 
United States Senators, and it is only reasonable to suppose that the 
frailties of the Senators to be chosen by the people will be of the 
same sort as the members of the legislatures whom they select. 
The State legislatures are what the people make them. If they fail 
it is because the people fail in their duty, and the same measure of 
negligence or incapacity will be shown in their choice of Senators. 

We trust the legislative bodies of the States to make the laws, upon 
which rests the safety of persons and property, the security of a home 
and the family relation, questions of legislation, taxation, and crime, 
and all that most closely affects the relations of private life, and yet, 
it is contended by these apostles of a new constitution that the 
sovereign representatives of the people are not to be trusted to choose 
the Senators of the United States, and that this power should be 
delegated to a convention or primary, to men upon whom no oath is 
imposed—to a mere majority or a mere plurality of the people or 
of a party. 

Perhaps the outcry against our upper House of Congress has arisen 
more because a few of its Members happen to be possessors of great 
wealth, and in one or two prominent instances elections have been 
promoted by corruption, than from any other cause. It is only a 
platitude to say that the mere fact that a citizen has acquired large 
possessions should no more militate against his election to places of 
power and authority than the fact of his comparative poverty for the 
one condition may be due to frugality, enterprise, and business 
sagacity, while the other may be the consequence of extravagance, 
waste, and incapacity. The cases of the election of Senators in 
which money has been shown to have been corruptly used are rare, 
but the people are prone to accept statements, based on suspicion, 
as having the force of fact and truth. Where there has been one 
case of corrupt election by the State legislatures, it is safe to say 
there will be numerous cases under the new system of election by 
the people, in which the whole electorate of a State will be debauched. 


10 


ELECTION OF UNITED STATES SENATORS. 


The members of the general assembly vote publicly/ 1 and are 
responsible to the people and to the press, who are ever vigilant to 
discover lack of integrity in their representatives, while the votes of 
citizens at the primary or in convention are secret and unrecorded, 
and the individual voter is more easily accessible to the degrading 
influences of corruption. If our legislatures have to any degree 
debased themselves by awarding senatorships under the influence of 
bribery, they must be equally guilty of promoting legislation affect¬ 
ing the great interests of wealthy corporations and individuals from 
similar dishonest motives, and the same arguments that can be offered 
against the constitutional method of selecting members of the upper 
House of Congress can be made with equal or greater force against 
the maintenance of our general assemblies as institutions for the 
passage of State laws, and in favor of referring all important questions 
of legislation directly to the people. 

So the argument, if it be a good one, is an argument against repre¬ 
sentative government, which can as well be made by the opponent 
of democracy in favor of an aristocracy or despotism. Indeed, if 
there has been any change in the legislatures, in so far as integrity 
is concerned, it is safe to assert that the change is for the better, and 
I submit that if you will only recall the powerful lobbies once main¬ 
tained at every State capital, and the corruption as it prevailed a 
quarter of a century ago in the cities of Baltimore, Philadelphia, 
and New York, and the influence exercised through those cities and 
their bosses over the legislatures of the States of which they are each 
the metropolis, you will be convinced that there is less danger now 
than ever from the corruption of the legislatures. Indeed, the argu¬ 
ment based on the opulence of Senators, and the improper use of 
money to secure election is the most illogical of all. It is not sus¬ 
tained by facts, and if it were, we might as well despair of represent¬ 
ative government. 

Judged by the experience of over a century, and not by the .errors 
of a single day, year, or decade, as all institutions should be tested, 
it is safe to say that the Senate has not only not failed to meet the 
expectations of its creators, but has more than justified their fondest 
hopes and dreams. Even Hamilton feared that it might not be able 
to maintain its authority,Tor before the final adoption of the Con¬ 
stitution, he wrote: 

Against the forces of immediate representatives of the people, nothing will be able 
to maintain, even the constitutional authority of the Senate but such a display of 
enlightened policy and attachment of the public good, as will divide with the House 
of Representatives the affections and support of the entire body of the people 
themselves. 

The Senate has been the bulwark of protection against immediate, 
hasty, and inconsiderate legislation demanded by the people, and 
conceded from time to time by the House, but it has always yielded 
to the sober, patient, wise, and deliberate judgment, and the second 
thought of the electors. 

When we speak of the great American in public life, we rarely men¬ 
tion the governors of States, and seldom name the Members of the 
House, who were elected directly by the people, but we point with 
pride to the members of the Senate—to Webster, Clay, Calhoun, 
Choate, Benton, Sumner, Pinckney, and Reverdy Johnson—and when 


ELECTION OF UNITED STATES SENATORS. 


11 


the passions of-partisanship and the prejudices of the hour have faded 
into the serene calmness of judgment that time always brings, it will 
be felt, I verily believe, that the leaders of the Senate, during the 
present generation, have not been unworthy successors of the states- 
menjwhom|the passing years and reverence for the past have cast 
for us into a heroic mold. 

One Western State, Oklahoma, has by its constitution undertaken 
to make of its general assembly a machine to register the choice of 
the people, expressed under a gust of passion and excitement on elec¬ 
tion day. One of the first results of this attempt to nullify the Fed¬ 
eral Constitution in Oregon was the election of a Senator whose 
views of the great political questions that divide the parties conflict 
with the opinion of the great majority of the people of his State, as 
expressed on the same election day. So, the consequence is that the 
great majority of the people of this great State will be misrepresented 
in the Senate for six years to come. In the States infested with the 
nostrum, that the voice of the people suddenly expressed on election 
day is the voice of God, the legislatures have undertaken to shift 
the responsibilities from themselves in order to flatter and cajole 
their constituents, but in only one State have the people given an 
expression to their deliberate judgment on this far-reachmg constitu¬ 
tional question. The results in Arkansas, Illinois, Missouri, Mary¬ 
land, Wisconsin, and other States, which have provided a popular 
primary, by statute, have not been such as to give the slightest hope 
that this plan, rejected unanimously in 1787, will now work to better 
advantage either of the Senate or of the general public. It may 
furnish the opportunity for time-serving political adventurers to ride 
into power or enable a political machine more easily to hold its grip 
on the selections, but it is certain not to be helpful to the country. 

In one Southern State the electors recently repudiated its most 
eminent citizen, who had made a distinguished record for ability 
and achievement in the Senate, and selected in his place a notorious 
demagogue; in another, a man, who for years had been the leader 
of his party in the House, only escaped defeat at the hands of a 
blatherskite by the margin of a few hundred votes. In a North¬ 
western State the people selected a Republican Senator whose 
chief claim to fame is his devotion to the vagaries of populism, 
and then chose as his associate, under the influence of bribery, a 
citizen who is distinguished only for his riches and the generosity 
with which he debauched the electorate. 

Whether the change be made by a State constitution, or by a 
mere act of the legislature, I respectfully submit that until there 
be a change in the Constitution of the United States the members 
of the legislature who select the Senators, with reference alone to 
the choice of the primary or of the convention, and not from lofty 
considerations of fitness, capacity, and ability, fail fully to comply 
with their oath to support the Constitution of the United States, 
which is just as obligatory upon the members of the State legisla¬ 
tures as those of Congress. It is the sworn duties of the States, 
through their legislative assemblies, to appoint Senators, and it is 
equally their duty to appoint them in the manner ordained by the 


12 


ELECTION OP UNITED STATES SENATORS. 


Federal Constitution. The great Webster, in his reply to Calhoun 
in 1833, used this language: 

All the members of all the State legislatures are as religiously bound to support 
the Constitution of the United States as they are to support their own constitutions. 
Nay, sir, they are as solemnly sworn to support it as we ourselves are, who are Mem¬ 
bers of Congress. * * * Let it then never be said, sir, that it is a matter of dis¬ 
cretion whether they, the States, will continue the Government or break it up by 
refusing to appoint Senators. They have no discretion in the matter. 

If there be one fundamental condition upon which the Constitution 
was adopted by the convention and ratified by the people, it was 
the provision for choosing Members of the Senate, which recognized 
the separate and independent existence of the States, and made 
the State governments essential to the organization of the Federal 
Government, and which caused the more populous States to sur¬ 
render their claim to proportional representation. It was on account 
of this provision that one section was inserted in the Constitution 
which can not be amended, namely, “that no State without its 
consent shall be deprived of its equal suffrage in the Senate/’ If 
Senators are to represent the people directly and not the sovereign 
States, how long will New York and Pennsylvania, with their grow¬ 
ing population of millions, be willing to exercise in the Senate no 
more power or influence than Nevada or Delaware with their thou¬ 
sands? Although this provision of the Constitution can not be 
changed under the organic law, yet the moral obligation of New York 
to submit to such an unfair representation in the Senate is gone, 
and the equality of the States can not, in fairness, be longer insisted 
upon. 

The House of Representatives, which is now the popular assembly, 
has not vindicated the expectation of the framers of the Constitution, 
and the devotees of popular suffrage for all elections can not point 
to this body as the one that best responds to the enlightened, delib¬ 
erate judgment of the electors. It is in the lower House that 
freedom of debate, the guardian of public liberty, no longer exists, 
and in which the right of amendment has been so abridged that it is 
practically cut off. The Speaker, through the committees which 
he appoints and controls, so guides and governs this body as no 
legislative assembly in the world is dominated, and it is not extrav¬ 
agant to say that it does not express, with satisfaction, the will of 
a free people. It is alone in the Senate, be it said to its honor, that 
freedom of discussion and of amendment without cloture exists, 
and it is for that reason chiefly that the bills passed hastily and 
without due consideration by the House have to be modified and 
perfected, after ample discussion and amendment by the Senate. 
Indeed, the very argument that is most often made against the 
Senate, namely, that it modifies the proposed legislation of the 
House and refuses to submit to hasty legislation, is the best argu¬ 
ment in its favor. The Senate is a deliberative assembly, and the 
House is not, and chiefly because of the wisdom of the Constitutional 
Convention of 1787, which unanimously voted down the proposal of 
the popular Senate and unanimously determined upon the pres¬ 
ent plan. 


ELECTION OF UNITED STATES SENATORS, 


13 


The late Senator Hoar, in one of his great speeches, in which this 
question was discussed in the Senate, well said: 

Our fathers were profound students of history. They found that no republic, 
although there had been many examples of other republics, ever lasted long without 
a Senate. The term Senate implied to their mind, as to ours, a body of men of mature 
age and of a tenure of office, which was removed from all temptation of being affected 
by temporary currents of public sentiment. The word Senate is a misnomer when 
"applied to any legislative body of whom these things are not true. 

This question provoked the most learned discussion in the first 
Constitutional Convention, its members studied and deliberately 
considered the experience of history and the causes that helped other 
republics to fail or succeed. The greatest constitutional lawyers of 
this and the last century have recognized the wisdom of that clause 
of the fundamental law that is now attacked by this new school of 
patriots now zealous for extending the spheres of popular elections. 

The Senators belonging to both parties, whose learning, patriot¬ 
ism and wisdom have never been questioned, have almost unani¬ 
mously in their public utterances, warned the nation of the danger 
threatened by this radical revolution of the Senate, and I submit 
that the bar of the United States, whose voice is always heard and 
heeded, when it speaks in unison, should take a united stand in favor 
of the Constitution as it has so long and satisfactorily existed. 


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